The FBI’s Quiet Plan to Expand Its Hacking Powers

Authorities are asking a little-known rule-making panel to increase the FBI’s search warrant powers to remotely hack into computers.

National Journal
Dustin Volz
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Dustin Volz
Nov. 5, 2014, 8:05 a.m.

Gov­ern­ment of­fi­cials are try­ing to ex­pand their au­thor­ity to hack in­to and loc­ate com­puters by chan­ging an ar­cane fed­er­al rule gov­ern­ing how judges can ap­prove search war­rants.

The Justice De­part­ment has pe­ti­tioned a ju­di­cial ad­vis­ory com­mit­tee to amend a rule that spe­cifies un­der what con­di­tions ma­gis­trate judges can grant the gov­ern­ment search war­rants.

The pro­vi­sion, known as Rule 41 of the fed­er­al rules of crim­in­al pro­ced­ure, typ­ic­ally al­lows judges to is­sue search war­rants only with­in their ju­di­cial dis­trict. But the gov­ern­ment has asked to al­ter this re­stric­tion to al­low judges to ap­prove elec­tron­ic sur­veil­lance to find and search a com­puter’s con­tents re­gard­less of its phys­ic­al loc­a­tion, even if the device is sus­pec­ted of be­ing abroad.

Law-en­force­ment in­vest­ig­at­ors are seek­ing the ad­di­tion­al powers to bet­ter track and in­vest­ig­ate crim­in­als who use tech­no­logy to con­ceal their iden­tity and loc­a­tion, a prac­tice that has be­come more com­mon and soph­ist­ic­ated in re­cent years. In­tel­li­gence ana­lysts, when giv­en a war­rant, can in­filt­rate com­puter net­works and cov­ertly in­stall ma­li­cious soft­ware, or mal­ware, that gives them the abil­ity to con­trol the tar­geted device and down­load its con­tents.

Tech­no­logy ex­perts and civil-liber­ties groups strongly op­pose the pro­posed rule change. On Wed­nes­day, sev­er­al of them test­i­fied be­fore the rule-mak­ing com­mit­tee ur­ging a re­jec­tion of the Justice De­part­ment’s pro­pos­al. The rule change, they ar­gued, would be sub­stant­ive and not merely pro­ced­ur­al, mak­ing it bey­ond the in­ten­ded scope of the ad­vis­ory pan­el. They also warned that the ex­pan­sion would threaten the Fourth Amend­ment’s strict lim­it­a­tions on gov­ern­ment search and seizures, and al­low the FBI to vi­ol­ate the sov­er­eignty of for­eign coun­tries.

The ju­di­cial pan­el on Wed­nes­day did little to tip its hand on the is­sue, but it did ag­gress­ively ques­tion sev­er­al wit­nesses as to what al­tern­at­ive they would prefer that al­lows fed­er­al in­vest­ig­at­ors to keep up with and catch elu­sive cy­ber­crim­in­als. Many of the rule’s crit­ics pleaded that a rule change like this should not be de­cided by an ob­scure reg­u­lat­ory pan­el of leg­al ex­perts but by Con­gress.

“I em­path­ize that it is very hard to get a le­gis­lat­ive change,” said Amie Stepan­ovich, seni­or policy coun­sel with Ac­cess, a di­git­al-free­dom group. “However, when you have us re­sort­ing to Con­gress to get in­creased pri­vacy pro­tec­tions, we would also like to see the gov­ern­ment turn to Con­gress to get in­creased sur­veil­lance au­thor­ity.”

Stepan­ovich also warned that the rule change could be ap­plied to large com­puter net­works, such as bot­nets, and breach the pri­vacy of all users com­mu­nic­at­ing via that net­work. While bot­nets, which can some­times in­volve mil­lions of com­puters, are of­ten viewed as sin­is­ter, not all of them are, Stepan­ovich said.

Oth­ers noted that the amend­ment could have dra­mat­ic and un­in­ten­ded con­sequences on for­eign re­la­tions. Sur­veil­lance or­ders gran­ted for com­puters loc­ated in an­oth­er coun­try or where the loc­a­tion is un­known would lack the Fourth Amend­ment’s pro­tec­tion against un­reas­on­able search and seizures, said Ahmed Ghap­pour, a com­puter law pro­fess­or at the Uni­versity of Cali­for­nia’s Hast­ings col­lege of law.

“It’s like turn­ing on a switch, but in­stead of turn­ing on a faucet, it’s like turn­ing on a fire hose,” Ghap­pour, ad­ded, not­ing that the rule change could ush­er in un­pre­ced­en­ted powers to spy on for­eign com­puter net­works.

The FBI has launched an ag­gress­ive cam­paign in re­cent weeks to pre­serve and in some cases ex­pand its elec­tron­ic-sur­veil­lance cap­ab­il­it­ies. FBI Dir­ect­or James Comey has warned that tight­er en­cryp­tion pro­tec­tions on Apple and Google smart­phones could lock out agents try­ing to track crim­in­als ran­ging from ter­ror­ist sus­pects to child por­no­graph­ers. Last week, the agency secretly met with House staffers to dis­cuss le­gis­la­tion that would force U.S. tech com­pan­ies to grant the gov­ern­ment great­er back­door ac­cess to their devices.

Des­pite the FBI’s ef­forts, Con­gress is un­likely to be sup­port­ive of such an agree­ment, as the tech in­dustry has stated it would un­der­mine its glob­al com­pet­it­ive­ness.

The ju­di­cial ad­vis­ory pan­el will meet again in Janu­ary to dis­cuss the Justice De­part­ment’s pro­pos­al.

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